Aaron Swartz, Intellectual Property, and the Humanities

The tragic suicide earlier this month of programmer and activist Aaron Swartz has initiated a series of public conversations, both about the life and work of this extraordinary young man and about the meaning of his death. The latter discussions have been dominated by concerns about perceived prosecutorial overreach and the relatively greater attention that our federal government seems to give to apparently minor violations of intellectual property law compared to, say, financial crimes and torture. Much attention has rightly been placed on the behavior of Carmen Ortiz, the U.S. Attorney for the District of Massachusetts, who was in charge of prosecuting Swartz for mass downloading journal articles from JSTOR via MIT’s computer network with the intent to distribute them free of charge. Less attention has been given to the behavior of JSTOR and MIT in relation to Swartz, though it is often noted in passing that JSTOR opposed prosecution, while MIT supported it.

But as important as the details of the Swartz case are, the broader context in which it took place needs to be given more consideration. How do we find ourselves with the extraordinary, dysfunctional intellectual property (IP) regime that has ballooned in the last four decades? And, of more direct interest to this blog, how should scholars in the humanities and the institutions in which we work, deal with this situation?

The first question, at least, has received a fair bit of attention over the years, thanks largely to legal scholars like Lawrence Lessig and James Boyle.* The second question, however, is of more local import. But to those of us who work in history and the other humanities and (at least soft) social sciences, it is a vital question.

The intellectual property rules-of-the-road have been vastly changed over the last several decades, largely at the behest of the entertainment industry, whose corporations own valuable pieces of intellectual property that would have slipped into the public domain due to their copyrights’ expiring. In addition to greatly lengthening the term of copyright, new laws, supposedly occasioned by the rise of digital technologies, have also restricted the realm of fair use. Not surprisingly, a set of rules designed to protect the pecuniary interests of a very unusual set of IP owners doesn’t work so well at dealing with the vast majority of older works, which are substantially less valuable and less in danger of becoming the object of profit-robbing piracy than of becoming unavailable as a result of staying under copyright. Of particular concern in this regard are “orphan works,” books, music, movies and other copyrighted items whose rights holders are unreachable for various reasons. When a work’s copyright owner is difficult to locate or establish, reproducing that work becomes effectively impossible. These copyright laws are of particular concern for those of us who study the history of the last hundred years or so.

Universities’ behavior in this brave new world of IP has, perhaps unsurprisingly, been largely dictated by those fields whose IP is of greatest monetary value, especially the so-called STEM disciplines. As even public institutions become ever more dependent on private funds, the ability of institutions to maintain financial interests in intellectual property produced on their campuses and by their employees is understandably of great interest. Such concerns often put universities on the side of greater restriction in the area of IP law. Even those of us who are academics in non-STEM fields have experienced some of the side effects of these institutional IP concerns.

Moreover, as communities of technologically savvy young people with access to some of the world’s most powerful computer networks, universities were an early target of the entertainment industry’s war on digital piracy. Largely in response to such outside pressure, universities have cracked down on illegal file-sharing among students and faculty. And digital file-sharing is only the tip of this iceberg. When I arrived at OU, the film studies program would invite the general public to attend, free of charge, the screenings for its larger courses. About a decade ago, we got a cease-and-desist letter from a film studio.

Of course, in the humanities, the intellectual property we generate is rarely of any great monetary value. Academic humanists certainly have intellectual property worries, but they tend to concern credit and plagiarism, rather than piracy. Personally, I’m happy to have my book as widely read as possible. If some professor sticks more than one chapter of it in a photocopied reader without paying rights fees, that’s of little concern to me (though, I suppose, a university press would say that if that behavior is multiplied enough times, the press’s ability to stay afloat would be imperiled).

The response of JSTOR — and, as far as I can tell, many of the scholars whose articles Swartz downloaded in apparent violation of JSTOR’s terms of service — to Swartz’s attempt to download and distribute millions of journal articles reflects this primary interest in wide dissemination of scholarly work. JSTOR is, after all, a non-profit. It needs to pay its bills and respect IP law, but it is also in the business of making academic work more, not less, available. These competing interests are nicely on display in the statement it issued back in July, 2011, when the prosecution of Swartz began, which emphasized that Swartz had broken the law, but that, having prevented the further illegal distribution of the content Swartz had downloaded, JSTOR was not interested in further legal action against him. In fact, just before the Swartz incident in 2011, JSTOR had already made freely available all the articles in its database that had already slipped into the public domain. (On the other hand, immediately after the discover of Swartz’s actions, JSTOR seems to have pressured MIT, threatening it with entirely losing access to JSTOR if MIT didn’t itself restrict access for its users to prevent such incidents from occurring in the future.)

I will be very interested to see what comes out of this investigation. The nation — and, indeed, the world — is in serious need of rebalancing its intellectual property laws. Even if we fall short of the utopian visions of activists like Swartz, who worked for a world of free information, copyright law must be made to once again serve the truly social interests for which it was created, rather than the special interests who’ve been rewriting that law for a generation or two. But, in the meantime, academic institutions need to rebalance their own attitudes toward intellectual property, so that they are driven less exclusively by the bottom line and more broadly by the needs of the faculty and students for open access to ideas and texts.

9 thoughts on “Aaron Swartz, Intellectual Property, and the Humanities”

Ben–
What’s your sense of why Swartz went after JSTOR, which is, as you say, a non-profit and an historical archive, rather than some of the proprietary journals and publishing companies in fields where much tighter controls and profits are the norm? At an institution like MIT, I don’t imagine that JSTOR is where the money is. If you believe that intellectual property should be of the commons, I would think that going after current medical, engineering, and computer science databases would make your point more effectively. Was is that Swartz thought MIT and the government would crack down a lot harder if he went after something that had substantial commercial value, and so the down-loading of JSTOR materials was a kind of symbolic act that he imagined would produce no criminal charges? I guess I think JSTOR has to have a way to fund what it does, and it provides a real service to scholars in a way that is cheaper to users than university press publishing. But I have access to JSTOR as a faculty member, and perhaps if I was on the outside of the university, I might consider its policies a restriction on access.

The big issue I see, having contributed to the archives of a few journals housed under JSTOR, is this: I wasn’t paid to write the articles, and I wrote them for the good of knowledge and higher learning, but then others get to profit from that “gift.” Same goes for UMI’s overcharging to merely housing and “making copies” of my dissertation. In the case of the articles and my dissertation, I paid *to produce* those articles (via time, tuition, and subsistence wages), but then JSTOR and other scholarly aggregators get to profit from my debt. It’s really irritating. – TL

The issues around intellectual property, open access and JSTOR are interesting. While I am sympathetic to Swartz’s imperative to increase access, I am also sympathetic to JSTOR (much less so to entities like Sage of Wiley Blackwell). And I think there is a distinction to be made internal to JSTOR’s holdings. There is, of course, an enormous amount of material of which the copyright has expired or seems to have little value in being held behind a firewall. (does a copy of some 1940s journal that is no longer in existence need to be subscription only? I can’t imagine that there is any profit to be gained for anyone). Yet, there is also a huge amount of material from active scholarly journals. Indeed, with their Current Scholarship program, JSTOR is providing access to many journals up through the most current issue. These are mostly journals published by university presses (the list is growing, but includes California, Illinois, Chicago, among others). For these journals JSTOR provides both a means of potentially reaching a broader academic audience and a means of remuneration to the journals and the presses. Having recently started a journal (History of the Present) published by a university press (Illinois) I have realized both how expensive journal publishing can be, just how much o a money-losing venture it is for a press (especially for a new journal), and how much free labor it relies on. None of the editors are paid, none of receive anything from our institutions, and at tenure and promotion it counts for little more than service. JSTOR provides a means where some income (which for a new journal is something far into the future) can be generated to defray publishing expenses and potentially pay for employees like managing editors and editorial assistants. Open access is appealing for the reason of potentially wider circulation (and that circulation, at least for me, does not rest on some fantasy of the general public, but rather those academics at universities without JSTOR or those in contingent labor positions without regular access), but it is hard for me to imagine a way of providing open access and the kinds of revenue necessary to keep a journal running.

Tim has an excellent point about who profits from knowledge in the commons produced by intellectuals, but I really don’t expect much from institutions that profit from contingent academic labor, etc. Now if Swartz had made money from his hacking, he’d be applauded like hackers Steve Jobs and Mark Zuckerberg.

Tim–
Do you really think JSTOR is profiting on the sale of your work? I guess I think JSTOR has operating costs, but the net benefit to scholars is the access it provides, and that’s a far greater benefit than any royalty we might receive from those who read and use our work. Universities have generally been happy to leave humanities scholars alone in terms of our copyright, precisely because its not worth very much in commercial terms. Given the cost of producing peer-reviewed work, and the lack of profit for it in the humanities, it’s not surprising that some of the costs are going to be born by those who produce it. Perhaps I’m wrong, but I haven’t heard of humanities scholars engaged in pitched battles over intellectual property ownership with the institutions at which they work. And of course, it is irritating not to be paid–or to actually pay yourself–for the work you produce, but I don’t think JSTOR is exploiting scholars and making money off of our work. Vanity presses, and journals in technical, business, and scientific fields, yes. But JSTOR?

It is difficult to know how much JSTOR makes, or what it charges, or what the long-term business model is. My guess is that its “right” to the old journal content is a lot flimsier than its “right” to charge users for access via its unique interface. I would also surmise that there is serious coin to be made this way (especially in the long run), and that in a time of permanent crisis of the public university, it is a crazy transfer of arbitrarily huge sums from public coffers (via annual massive hikes in tuition) to JSTOR for services that could easily be duplicated at minimal cost, with no relation whatsoever to the promotion of research and intellectual innovation, nor any payment of royalties to the authors or editors whose work JSTOR collates.

Historically speaking, one of the most interesting questions about JSTOR is why academics in the humanities have not pursued IP rights in the same way as literary authors and artists over the past 100 years. There is nothing in the Copyright Clause, nor in subsequent IP jurisprudence to suggest that academics should be excluded from IP protections. Quite the contrary. It’s a good thing that academics have tended to prioritize sharing over hoarding—copyright hyper-vigilance is horrible for culture and is almost always based on spurious economics. But there are political options beyond the arbitrary split between the copyright bullies and the free culture libertarians.

There might be a way, for example, for academics to argue that it should be up to them whether free use of their published work, within certain bounds, is permitted. The most promising model for this kind of activism might be the work that Peter Jaszi has done with documentary filmmakers in writing up a professional code of norms regarding “derivative use” of, for example, clothes with logos, or pop songs in the background of documentary footage. Judges tend to defer to professional norms and standards—when documentarians collectively assert that a Nike logo or Beatles song within the texture of real life is not the sign of poaching, but rather the inevitable consequence of documenting how people live, there is often a surprising degree of receptivity to allowing such putative “infringement.”

The history co-op site (the fate of which I would love to know more about), and the SSRN, as well as grey market sharing sites, as well as the way in which academics tend to behave (emailing work to each other promiscuously)–all might suggest precedents that, drafted into a collectively signed code of norms, could permit free use of published research with a provision, say, that journals get 3 years of monopoly protection. It would be a hard fight, but it would be worth it. Property rights are usually conceived of as the “right to exclude”–but academics could, in theory, assert property rights in the form of a “right to include.” That would be wonderful.

On the other side, there are increasing signs of proprietary enclosure of the intellectual commons in the humanities—the case of Paul Zukofsky’s hostility to researchers seeking to publish articles on his father, the poet Louis Zukofsky, serving as perhaps the most scary example of IP overreach in extending “moral rights” to heirs. There is a famous case with James Joyce’s heirs, as well, and plenty of anecdotal evidence among historians regarding the hellscape of “permissions.”

So the other part of a pushback that might help honor the memory of this courageous young man might be a more general rejection of the testate/inheritance logic inscribed in recent IP decisions. The law is supposed to spur creativity and innovation in the here-and-now by delaying entry of information into the public domain “for limited times,” and was never meant to establish a permanent property right to be transmitted over generations, a property right that necessarily works against the very policy imperatives that copyright law is supposed to promote.

It’s not hard to see what JSTOR’s business model is, where they get revenue or what their expenditures are. It’s a US non-profit with public IRS Form 990 tax records. Go to GuideStar.org and search “ITHAKA Harbors”. You can review the salaries of their executives and compare to how much they spend on IT, purchasing journals and scanning. It’s all public record.

If you do that (as I have), you may be scandalized (as I was) by the Fortune 500-size salaries being lavished upon the executives of this “non-profit”. These are parasites, nearly every one formerly a university administrator, soaking up tuition fees from undergraduates at ever-increasing rates. The opportunity cost of JSTOR’s executives can easily be measured in centuries of teaching hours. Per year.

Some of these comments are a little over-the-top. The average Fortune 500 CEO makes 11.3 million, and the average executive makes 5 million or so (source). Ithaka’s top executives (many of whom don’t work on Jstor) make between 200K and 400K in total compensation. Which is a lot, but completely in line with the top salaries at an important nonprofit.

Or a more important comparison: JStor has $40 million in fee revenue, $10 million of which is going straight to publishers as fees: Elsevier (not the whole Reed Elsevier company, just Elsevier) has over a billion in profit on $3 billion in revenue.

I used to have issues with JStor, but in the past few years they’ve been about as responsive on every important digital library issue as one could hope (public access, non-consumptive computational provisions, full availability of out-of-copyright materials). That JStor ‘liberator’ plugin, for example, just downloaded articles that JStor had already made completely libre. Continuing pressure on Jstor is important, I guess, but it’s important because it’s the best game out there, not the worst.

All text (including posts, pages, and comments) posted on this blog on or after August 7, 2012, is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. More information here

The Society for U.S. Intellectual History is a nonprofit, nonpartisan educational organization. The opinions expressed on the blog are strictly those of the individual writers and do not represent those of the Society or of the writers' employers.